Separation of powers

Introduction The Australian Constitution was conceived through the process of Federation in 1901 to unify the states of Australia through one form of decentralised government. 1 The Constitution describes a set of principles and fundamental rules that prescribes a division of powers between the Commonwealth and the six member states of the Federation through the Division of Powers Doctrine, and expressly defines a separation of powers between the three arms of government through the Separation of Powers Doctrine.

’The four principles of federalism’ within the Australian Constitution are represented by: a written Constitution; a separation of powers between government branches; an influential Court system; and a distribution of power between the states and the Commonwealth. 2 The Constitution was largely built on the common interests of the states to unite in affairs across the country such as freedom of interstate trade and commerce, defence, and uniformity in immigration policy,3 supported through the dual requirements of responsible government and federalism.

4 The founders of the constitution believed that by creating a limited form of government that expresses the extent of their powers,5 the bulk of the power would reside within the states implied residual powers thus protecting the states’ integrity. Although it is asserted that the Constitution does limit the powers chiefly through the two previously mentioned doctrines, it is argued that the Constitution only limits these powers to a certain extent.

Division of Powers Doctrine The division of powers describes the allocation of powers between the six federation members and the Commonwealth in order to retain a balance of powers between all members. Section 51 and 52 of the Australian Constitution expressly prescribes the extent of Commonwealth power where states’ powers are residually implied.

6 Although there has been little amendment to the Constitution, the shifting fiscal and political authority and most prominently the interpretation by the High Court provided by s71 of the Constitution since 19207, has eroded the federal balance of power originally intended by the framers of the Constitution, thereby allowing the Commonwealth to prevail over the States. One of the first illustrations of undermining of the ‘division of powers’ to limit state power is exercised through in the High Court’s judicial interpretation of the Corporations power with regard to the Engineer’s Case.

8 The legal issue arising for the arbiters of the Constitution was if the Commonwealth was within their scope of powers to legislate under the Conciliation and Arbitration Act (1904) pursuant to s51(xxxv) of the Constitution. The court concluded that through the broad and taboo method of Constitutional interpretation where the court looked to the plain and ordinary meaning of the text,9 the restrictive doctrines of implied intergovernmental immunities 10, and reserved powers11were no longer applied. 12 Creating precedent, the states would now be subject to Commonwealth legislation, if on its true construction applied to them.

13 This therefore reinforces s109 of the Constitution14, which may be seen as the origin of the Commonwealth’s consolidation of power. Conversely, there have been subsequent exceptions placed on the Commonwealth by our “independent arbiters”15 to limit its growing power. This restoration of the states’ balance of power was prominently explored through the State Banking Case16 where the ratio decidendi declared that the Commonwealth must not discriminate against or between states or threaten their existence or capacity to function.

17 This illustrates the checks and balances that have been built into the Constitution to uphold the division of powers. Federation created an economic union between constituent states by which a uniform tariff policy allowed for free trade between states. 18 However, this limited the states’ opportunity to earn their own tax revenue. 19As the states were already limited in taxation ability by Constitutional enactment,20 further limit was placed on them with the continuing assistance of the High Court’s judicial interpretation processes, most significantly in the First Uniform Tax Case. 21.

The First Uniform Tax Case concerned the Commonwealth exercise of authority over taxation22 in a manner that effectively prevented the latter from levying an income tax. 23 The Commonwealth instructed the states to vacate the field of revenue raising through income tax. This was put this into practice by enacting various legislation and amendments24, which essentially forbade a taxpayer from paying state income tax until they had paid the Commonwealth version. The plaintiff’s basis for action was that the Commonwealth was in constitutional breach of s51(xx) on the basis of discrimination.

25 The broad interpretation of s51(xx)26 by the High Court upheld the Commonwealth’s decision to make itself exclusively responsible for the collection of income tax. Therefore, this may be considered as the impetus for the Commonwealth’s monopoly of state taxation power known as the ‘Vertical Fiscal Imbalance. ’ This imbalance describes the way in which the Commonwealth raises more revenue than it is required to outlay and the opposite obtains for the States. 27 The implication here lies in the fact that the Commonwealth cannot discriminate between the States in terms of taxation or trade and commerce revenue.

28 Further it was not possible for any State to raise its own income tax, which in turn creates a dependence on the Commonwealth to receive disproportionate redistributed revenue by way of tied grants. 29 This limit of state powers creates a significant loss in autonomy when conditional grants are delivered rather than as a block grant to be spent as the State sees fit. 30 Cheryl Saunders asserts that the shift of balance of power favouring the Commonwealth was an ‘evolution and not a revolution’31 where the distribution of power toward the Commonwealth may be considered necessary.

The First Uniform Tax Case32 decision may be seen as one of necessity as a means to ensure State taxpayers would bear an equal share of the World War II financial burden. 33 However this can be argued by looking internationally, as Canada implemented a similar arrangement as the Vertical Fiscal imbalance however terminated it after the war has ceased,34 however the post war continuation in Australia demonstrates how the balance of power has progressively shifted towards a more centralised federation.

Jaensch35 asserts that the trend to towards federal power domination should not necessarily be seen as a threat of centralisation. Perhaps this is because Australia is now a key member of the international community whose markets and society are part of globalisation. For example, the Tasmanian Dams36 Case saw the Commonwealth exercising its external affairs power37 by entering into a convention38 that prohibited the construction of a dam was against international convention.

Australia is no longer an amalgam of sparsely populated penal colonies, but densely populated urban complexities. Therefore the trend towards centralisation of government may be seen as a natural progression. As Constitutional framer Alfred Deakin once said: “ …Their [States] need will be its [Commonwealth] opportunity. The Commonwealth will have acquired a general control over the States…”39 Therefore it could be argued that a state based distribution of power may be outdated and a centralisation of government may be more effective in the global economy.

Separation of Power The ‘separation of powers’ of powers doctrine may be the considered the most significant underpinning that describes the operation of the Australian Constitution. 40 It proposes that the three institutions of government: The Legislature, The Executive and The judiciary are able not to exercise total power. To ensure this limitation, the Australian Constitution expressly defines each government institution and provides for their operation within Chapters 1,2, and 3.

The effect of this is that the Constitution explicitly enables checks and balances in order to prevent ‘absolutism’ or one institution prevailing over the others. 41 Despite the Constitution’s explicit structure to reflect the separation of powers, in reality each form of government branch does coincide, therefore threatening the original intention to uphold the separation of powers imposed by the Constitution. 42 The Australian system of government may be referred to as the ‘Washminster System’ as it has adopted both the United States’ Washington model and the United Kingdom’s Westminster model of government.

43 Contrary to the Washington model of government, the separation of powers doctrine appears not to be as rigidly practiced in Australia, for example the Executive government is drawn from the Legislature. The separation of powers between the Executive and Legislature is not readily enforced within Australia. However, the Stevedoring Case44 decision expresses how the separation between the two institutions is not practical for the Australian system of government. Instead the idea of ‘responsible government’ is practiced.

This principle suggests that members of the executive are directly accountable for their actions to the Legislative, as they are required to sit in the representative House of Representatives thus ensuring limiting executive power through another check and balance between Executive and Legislative. Furthermore, the Constitution does provide for a physical form of separation between the Executive and Legislature provided by s44 that excludes from parliament government employees who hold offices of employment under the Crown. 45 This was demonstrated in Skyes46 where independent MP Mr.

Cleary on leave without pay was held to be in direct breach of s44 and was subsequently disqualified. This case highlights s44’s clear intention to separate executive influence from the legislature thus complying with the doctrine of separation of powers. The High Court has voiced the imperative for the judiciary to exercise judicial independence separate from the other two institutions of government. The landmark decision of Boilermakers Case47 extended the scope of s71 by creating two principles that the judiciary should adhere to in order to uphold separation of powers doctrine and therefore the governing construct of the rule of law.

The first principle reiterated s71 where judicial power could not be validly given to a body whose exclusive role was non judicial and secondly that the High Court and federal courts were not authorised to legislate for executive function. Otherwise ‘…where [judiciary] joined with the executive, the life and liberty of the subject would be exposed to arbitrary control. ”48 The Boilermaker’s Case successfully reinforces the scope of judicial power and more importantly stresses that the Legislative and Executive must remain from interfering with this institution of government.

However, in reality it is asserted that the Courts have not acted as rigidly as they so emphasise with regard to judicial and non- judicial functions. The broad approach of judicial interpretation adopted in subsequent cases49 to Boilermaker’s can be argued to limit the application of the separation of powers. This lenient approach was demonstrated in Hilton v Wells50 where a federal judge was given the legislative power of issuing a wiretapping authority.

The ultimate question is how effective is the Constitution in maintaining the separation between government branches? As Michael Kirby asserts, the Constitutional adherence to the separation of powers is again jeopardised by perpetual political pressure and ‘attacks on judges’ flowing from Executive and Legislative government. 51 This phenomenon was demonstrated within the Wik52 case where Acting Prime Minister Tim Fischer, publicly denigrated the High Court alleging an unwarranted delay in the momentous decision. 53

Chief Justice Brennan publically responded54 asserting that ‘public confidence in the Constitutional institutions of government is critical to the stability of our society…’55 Furthermore, he asserted that political attacks on the judiciary are unwarranted to the devotion of judicial independence of the Executive and Legislative. However, this does not suggest hat that the courts are immune to criticism, but instead suggests that because exerting judicial independence plays such a key role in adhering to the rule of law, uninformed judicial denigration should be restrained in preserving the doctrine of separation of powers.

The High Court’s nature in limiting the powers of legislative function is illustrated within the Kable Case56 where a doctrine emerged to prevent state parliaments from legislating that adversely affect the functioning of the state courts. The repercussions of this case set precedent that 1) prevents state parliament from abolishing the Supreme Court and 2) restricts state parliaments from legislating giving the judiciary functions that would ‘destabilise institutional integrity.

’57 The Constitutional significance of this case lies in the limitations it imposes specifically on state parliaments, whom had not previously adhered to the Separation of powers doctrine as strictly as the Commonwealth institutions of government. 58 However, this judgement records that a general doctrine of separation of powers is implemented within the state institutions of government for example state assign judicial functions to non- judicial bodies. Therefore while it does provide for some limitations to the state institutions, it is does not provide enough limitation on the state institutions as on a Commonwealth level.

59 Conclusion It is argued that the Constitution does place limits on the exercise of powers of the Commonwealth and its constituent member states through the doctrines of division and separation of powers. It is expressed that the Commonwealth has eroded the State’s consolidation of power and consequently the division of powers doctrine, chiefly through the broad judicial interpretation of the Taxations, Corporations and External affairs power all provided by ss51-52 of the Constitution.

However it is argued that while the division of powers doctrine embedded within the Constitution is jeopardised, the centralisation of government may be in fact more suitable for Australia as a global player in the international community. The separation of powers doctrine embodied within the Australian Constitution limits the powers between the three institutions of government to an extent. It exists only partially within state institution, but with the assistance of conventions such as the bicameral system and ‘representative’ and ’responsible government’ the doctrine takes effect.

Finally, in order to preserve this doctrine at a Commonwealth level, judicial independence from the Executive and Legislative is vital to the Australian federal system of government, and the overall rule of law. Bibliography A. Articles/ Books/ Reports Campbell, Enid and H P Lee, The Australian Judiciary (Cambridge University Press, 2001) Black, David, Federation issues, (Perth: Western Australian Constitutional Forums and People's Conventions, 1998) Word Count: 2302.